CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1906.

SCHLEMMER . BUFFALO, ROCHESTER AND PITTSBURG RAILWAY COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.

No. 41. Argued January 18, 21, 1907.--Decided March 4, 1907.

Statements of a witness although based on hearsay constitute evidence in the cause unless seasonably objected to as hearsay.

The provisions of § 2 of the Safety Appliance Act of March 2, 1893, as amended April 1, 1896, declaring it to be unlawful for any common carrier engaged in interstate commerce to haul or permit to be hauled or used on its line any car used in moving interstate commerce not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars, relate to all kinds of cars running on the rails, including locomotives and steam shovel cars. Johnson v. Southern Pacific Co., 196 U. S. 1. The object of that statute was to protect the lives and limbs of railroad employés by rendering it unnecessary for men operating the couplers to go between the ends of the cars, and the words "used in moving interstate traffic" occurring therein are not to be taken in a narrow sense. In a suit based upon the Safety Appliance Act of March 2, 1893, as amended April 1, 1896, the plaintiff is not called upon to negative the proviso of 6 of said act, either in his pleadings or proofs. Such proviso merely creates an exception and if the defendant wishes to rely thereon the burden is upon it to bring itself within the terms of the exception; those who set up such an exception must establish it. Where a Federal question is duly raised at the proper time and in a proper manner in the state court and the judgment of the state court neces

VOL. CCV-1

(1)

Argument for Plaintiff in Error.

205 U. S.

sarily involves the decision of such question this court on writ of error will review such judgment although the state court in its opinion made no reference to the question. And if it is evident that the ruling of the state court purporting to deal only with local law has for its premise or necessary concomitant a cognizable mistake, that may be sufficient to warrant a review.

Assumption of risk as extended to dangerous conditions of machinery, premises and the like, obviously shades into negligence as commonly understood. The difference between the two is one of degree rather than of kind.

Section 8 of the Automatic Coupler Act having exonerated the employé from assumption of risk under specified conditions, the employé's rights in that regard should not be sacrificed by charging him with assumption of risk under another name, for example, with contributory negligence.

In this case the so-called contributory negligence of the deceased employé was so involved with and dependent upon erroneous views of the statute, that the judgment complained of must be reversed. 207 Pa. St. 198, reversed.

THE facts are stated in the opinion.

Mr. Frederic D. McKenney and Mr. Luther M. Walter, with whom Mr. Edward A. Moseley and Mr. A. J. Truitt were on the brief, for the plaintiff in error:

The steam shovel which the deceased, in the performance of his duty as a brakeman, was endeavoring to couple up to the caboose was a "car" within the purview of section 2 of the. act of March 2, 1893, commonly known as the "Safety Appliance Act." The purpose of that act was to promote the safety of employés and travelers upon railroads; the act is remedial in its character and should be construed so as best to accomplish the intent and purpose of the Congress. Johnson v. Southern Pacific Co., 196 U. S. 1; Kansas City Co. v. Crocker, 11 So. Rep. 262; Thomas v. Railroad Co., 38 Georgia, 222; Perez v. San Antonio &c. Ry. Co., 28 Texas Civ. App. 255; Tex. & Pac. Ry. v. Webb, 72 S. W. Rep. 1044.

The steam shovel was en route from Limestone, New York, to a point in Pennsylvania. That the steam shovel was bolted to a platform which was supported on trucks running upon the rails does not militate against the conclusion that its

205 U.S.

Argument for Plaintiff in Error.

movement across state lines and from a point in one State to a point in another constituted interstate commerce. Though supported by its own trucks and running on its own wheels it nevertheless was freight and was being transported by defendant in error in pursuance of its general business as a common carrier. Gibbons v. Ogden, 9 Wh. 1; Lottery case, 188 U. S. 321-345; Peoria & Pekin Union Ry. Co. v. C., R. I. & P. Ry. Co., 109 Illinois, 135.

Inasmuch as the steam shovel car was within the purview of the statute, it follows that as it was not equipped with an automatic coupler as required by that statute its movement was in violation of law. Section 8 of the act of March 2, 1893, provides that if any employé of a common carrier subject to the act is injured by any car in use contrary to the provision of the act such employé shall not be deemed to have assumed the risk thereby occasioned.

It is our contention that the doctrine of assumption of risk in this case was so inextricably interwoven with the question of supposed contributory negligence on the part of the deceased that the prime matter for adjudication by the state court was the applicability of the Federal statute to the facts disclosed by the evidence. The refusal of the state court to accord to the statute controlling influence constituted, upon the facts and circumstances shown by the evidence, reversible

error.

This court has jurisdiction to review judgments of the Supreme Court of a State when a Federal question has been properly raised in and disposed of by that court. Whether a Federal right was sufficiently pleaded and brought to the attention of the state court is itself a Federal question, and the decision of this court on writ of error is not concluded by the view taken by the highest court of the State, Carter v. Texas, 103 U. S. 370,

177 U. S. 442, 447, citing Neal v. Delaware, 396-397; Mitchell v. Clark, 110 U. S. 633, 645; Boyd v. Thayer, 143 U. S. 135, 180.

Where in this court a party asserts that the final judgment

Argument for Plaintiff in Error.

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of the highest court of a State denied to him a right or immunity set up and claimed under the Constitution or laws of the United States and the court finds that a Federal question involving such claim was properly raised below, jurisdiction of this court to review that judgment cannot be defeated by the mere failure or the refusal of the highest court of the State to refer to the question so raised. Erie R. R. Co. v. Purdy, 185 U. S. 148.

It is immaterial that the state court considered the case to fall within the principles of general law untrammeled by statutory enactments. The grasp of the Federal statute, if any it had, must first have been released before the general law can be given play. The construction, scope, and applicability of the statute invoked to the facts disclosed by the evidence raise Federal questions in respect to which the party who claims under such statute, and whose claim is denied, has a right to invoke the judgment of this court. Anderson v. Carkins, 135 U. S. 483.

While it is conceded that this court cannot enter upon an inquiry as to whether the finding of a jury in a state court is against the evidence, Missouri, Kansas & Texas R. R. Co. v. Haber, 169 U. S. 639, nevertheless the question as to the sufficiency, competency, or legal effect of the evidence as bearing upon a question of Federal law raised in the course of the trial to support the conclusion reached by the state court may be. reviewed by this court, as the supreme court of error of a State may review the proceedings of inferior courts of original jurisdiction. Mackey v. Dillon, 4 How. 447; Dower v. Richards, 151 U. S. 658.

Before accepting this steam shovel car it was the defendant's duty to inspect it and to see that it complied with the statute. Railroad v. Mackey, 157 U. S. 72; United States v. Southern Ry., 135 Fed. Rep. 122.

The proximate cause of the accident in this case was the failure of the defendant company to require the equipment of the car with automatic couplers. Railroad Co. v. Holloway,

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Argument for Plaintiff in Error.

191 U. S. 334; Elmore v. Seaboard Air Line Ry. Co., 41 S. E. Rep. 786.

A violation of a statutory obligation by an employer is negligence per se. Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, and cases cited. Contributory negligence will not bar a recovery when the defendant itself has violated a positive requirement of law. Flint &c. R. Co. v. Lull, 28 Michigan. 510, 515; The Pennsylvania, 19 Wall. 125; Carterville Coal Co. v. Abbott, 181 Illinois, 495; Kansas City, M. & B. R. R. v. Flippo, 138 Alabama, 487.

The evidence in this case should have been submitted to the jury. It may well be doubted whether there is any evidence of negligence on the part of deceased. It certainly can not be said that all minds, from the evidence, would arrive at the conclusion that deceased had been guilty of negligence causing his own death. The decisions of this court have well settled the law to be that the case must go to the jury wherever there is reasonable ground for ordinary minds to arrive at different conclusions. Railroad Co. v. Stout, 17 Wall. 657, 663.

The witnesses as to the occurrence of the accident were employés of the defendant in error and in a sense were interested witnesses; therefore the measure of credence to be given their evidence should have been left to the jury. Texas & Pac. R. Co. v. Carlin, 189 U. S. 354, 361.

The defendant in error by refusing to haul the defective car could have avoided the injury to Schlemmer, and although Schlemmer might have been guilty of ordinary want of care and caution, still the defendant in error was liable, since by using reasonable care and prudence it might have avoided. the consequences of plaintiff's negligence. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408.

From the mere fact of the occurrence of the injury negligence is not to be presumed. Northern Pac. R. R. v. Everett, 152 U. S. 107.

In the courts of Pennsylvania, as well as those of the United States, the trend of decision in the more recent cases is to the